JOHN E SCALISE V BOY SCOUTS OF AMERICAAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JOHN E. SCALISE, Individually,
and as Parent, Guardian, and Next Friend of
BENJAMIN SCALISE, a Minor,
January 20, 2005
BOY SCOUTS OF AMERICA, LAKE HURON
AREA COUNCIL # 265, and MT. PLEASANT
Isabella Circuit Court
LC No. 00-000224-NZ
Official Reported Version
Before: Zahra, P.J., and Saad and Schuette, JJ.
This case arises from the circuit court grant of summary disposition to defendants, Lake
Huron Area Council, the local affiliate of Boy Scouts of America (Boy Scouts)1 and Mt. Pleasant
Public Schools (Mt. Pleasant), in a suit brought by plaintiffs, father and son. Plaintiffs father and
son allege that they were excluded from a local Cub Scout group affiliated with Boy Scouts
when the father refused to affirm the Boy Scouts' religious declaration. Plaintiffs charge that the
relationship between defendants violated Michigan constitutional and statutory prohibitions on
religious discrimination. The circuit court, in two opinions, granted defendants' motion for
summary disposition under MCR 2.116(C)(10), dismissing plaintiff 's case in its entirety.
Plaintiffs now appeal as of right. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Boy Scouts of America is a national scouting organization and defendant is the local scouting
affiliate, Lake Huron Area Council. We note that plaintiffs' complaint named only "Boy Scouts
of America, Lake Huron Area Council," not the national organization. Thus, our reference to
"Boy Scouts" throughout this opinion refers only to the Lake Huron Area Council, not the
Boy Scouts is a Michigan nonprofit corporation chartered by the national association of
Boy Scouts of America to support and organize scouting activities in nineteen counties in midMichigan, including Isabella County. Boy Scouts conducts scouting activities, including pack
and den meetings of Cub Scouts, through local sponsorships, at times referred to as "charter
partners," with a wide array of community organizations in the Mt. Pleasant area. These
sponsoring groups are quite diverse, including a local business (DeWitt Lumber), fraternal
groups (Borley Hamel VFW Post #3033, Shepherd Rotary Club), and religious organizations and
groups (Beal City Knights of Columbus, Sacred Heart Academy, Latter Day Saints and
Rosebush United Methodist Church), two local school parent teacher organizations (PTO), and
one local parent teacher association (PTA). In addition, a local school of Mt. Pleasant's,
Rosebush Elementary School, was a "charter partner."2
Before September 2000, it was the practice of a representative of Boy Scouts, with Mt.
Pleasant's permission, to visit several of its elementary schools during school hours. The
purpose of the visits was to speak with boys of scouting age about becoming Cub Scouts and
possibly attending evening informational meetings with their parents. In September 2000, Mt.
Pleasant notified Boy Scouts that these visits were no longer permissible.
Consistently with Mt. Pleasant's facilities use policy, community organizations were
permitted to use school facilities when school was not in session. Among other groups,3 Boy
Scouts used school facilities to hold its den and pack meetings or other scouting activities when
school was not in session. In addition, Mt. Pleasant permitted community groups to post and
distribute literature within the schools and to provide recruitment flyers for distribution to
students. Boy Scouts provided informational literature and recruitment flyers for distribution
through this system in Mt. Pleasant classrooms. In November 1997, Ben Scalise was a third
grader at Mt. Pleasant's Fancher Elementary. After bringing home a Boy Scout flyer distributed
at Fancher, he and his father attended a Cub Scout gathering. At the meeting, Mr. Scalise
volunteered to become a den leader. Later, having reviewed Boy Scouts bylaws and mission
statement,4 Mr. Scalise learned that Boy Scout leaders were required to endorse the Boy Scouts'
declaration of religious principle,5 and youth members, depending on their status as Boy Scouts
This relationship ended a few months after this lawsuit was filed.
The record reflects that since 1997, 127 different groups, organizations, and individuals have
used school facilities when school was not in session. In addition to Boy Scouts, a wide range of
groups used school facilities in this manner, including Isabella County 4-H, Central Michigan
Community Hospital, Amateur Hockey Association of Mt. Pleasant, AFSCME CMU Local
1568, Mitten Bay Girl Scouts, Saginaw Chippewa Indian Tribe, Special Olympics of Michigan,
and Maranatha Baptist Church.
"The mission of the Boy Scouts of America is to prepare young people to make ethical choices
over their lifetimes by instilling in them the values of the Scout Oath and Law."
"The Boy Scouts of America maintains that no member can grow into the best kind of citizen
without recognizing an obligation to God and, therefore, recognizes the religious element in the
or Cub Scouts, were required to recite either the Boy Scout Oath6 or the Cub Scout Promise7 and
to abide by either the Scout Law8 or the Law of the Pack.9
In January 1998, Mr. Scalise sent Boy Scouts a letter explaining the declaration of
religious principle to be repugnant to his humanist beliefs and requested an exemption from the
requirement. Boy Scouts refused and revoked Mr. Scalise's membership. Subsequently, Mr.
Scalise removed Ben from Boy Scouts. Thereafter, Mr. Scalise contacted Mt. Pleasant to voice
his concerns about distribution of information in the school about a religious organization and
requested that subsequent flyers include a disclaimer informing parents of the religious character
of Boy Scouts. Later, in May 1999, after a Boy Scout representative visited Ben's classroom
during school hours, Mr. Scalise again contacted Mt. Pleasant because the distributed flyers
lacked the requested disclaimer. Mt. Pleasant subsequently requested that Boy Scouts include
such a disclaimer, and it complied. In December 1999, unsatisfied with the disclaimer's
language,10 Mr. Scalise again protested the distribution of Boy Scouts flyers. In October 2000,
the Scalises filed suit against defendants.
In their initial complaint, plaintiffs alleged that the actions of Boy Scouts and its use of
school facilities by Boy Scouts, with the permission of Mt. Pleasant, excessively entangled Mt.
Pleasant in Boy Scouts' religious mission in violation of Michigan constitutional guarantees of
equal protection and free exercise of religion, as contained in Const 1963, art 1, §§ 1 and 4, and
of nondiscriminatory schools in art 8, § 2. Further, plaintiff claimed that Boy Scouts' actions
violated the Michigan Civil Rights Act, MCL 37.2101 et seq. Plaintiffs sought damages and
training of the member, but is absolutely nonsectarian in its attitude toward that religious
training. The Boy Scouts of America's policy is that the home and the organization or group with
which the member is connected shall define attention to religious life. Only persons willing to
subscribe to this declaration of religious principle and to obey the bylaws of the Boy Scouts of
America shall be entitled to certificates of leadership."
"On my honor I will do my best; To do my duty to God and my country and to obey the Scout
Law; To help other people at all times; To keep myself physically strong, mentally awake, and
morally straight." [<http://www.scouting.org>.]
"I, (name), promise to do my best, To do my duty to God and my country, To help other
people, and To obey the Law of the Pack." Id.
"A Scout is . . . trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty,
brave, clean, and reverent." Id.
"The Cub Scout follows Akela. The Cub Scout helps the pack go. The pack helps the Cub
Scout grow. The Cub Scout gives goodwill." Id.
The disclaimer defined the Boy Scouts' purpose and listed its leadership requirements, one of
which was subscribing to the declaration of religious principle, which was reproduced on the
flyers verbatim. See n 5.
In April 2000, plaintiffs and defendants filed cross-motions for summary disposition. In
April 2001, plaintiffs filed an amended complaint alleging criminal violation of Michigan public
accommodation laws, MCL 750.146 et seq., sometimes referred to as the equal accommodation
act. In November 2001, the circuit court granted summary disposition to defendants on all
claims except one. The trial court, citing Sherman v Community Consolidated School Dist 21, 8
F3d 1160 (CA 7, 1993), held that a local Boy Scout council was not a state actor and, therefore,
would not make Boy Scouts liable under the Michigan Constitution's Equal Protection Clause,
Const 1963, art 1, § 2, its Establishment and Free Exercise Clause, Const 1963, art 1, § 4, and art
8, § 2. Further, the court held that Boy Scouts, as a private club, was exempt from the Michigan
Civil Rights Act, MCL 37.2101 et seq., and was not a public accommodation as defined within
The circuit court held that Mt. Pleasant's policy,11 which provided Boy Scouts access to
school facilities and mailboxes, did not provide special treatment to Boy Scouts, did not compel
or encourage the maintenance of Boy Scouts' policy, and thus did not make Mt. Pleasant a
symbiotic partner with Boy Scouts in violation of the Equal Protection Clause. However, the
circuit court did grant plaintiffs' motion for summary disposition relating to the Establishment
Clause charge, finding defendants liable for the recruiting effort by Boy Scouts conducted during
In February 2002, both defendants moved to dismiss that portion of the November
opinion and order that sustained the plaintiffs' claim for the Boy Scouts' visits during school
hours. Plaintiffs moved to revise the opinion and order, reiterating their contention that Boy
Scouts was in fact a state actor, and again requested damages to be awarded according to the
Michigan Civil Rights Act. In the alternative, plaintiffs contended that Jones v Powell, 462
Mich 329; 612 NW2d 423 (2000), recognized judicially inferable damages for civil and
constitutional rights violations. In response, defendants contended the Michigan Civil Rights
Act, which requires a finding of state action, provided the only remedy for violations of such
rights. Defendants argued that, because state action was not present here, Boy Scouts was not
liable for any damages and thus the action should be dismissed.
In November 2002, the court denied plaintiffs' motion to revise the November 2001
opinion and order and granted defendants' motion to dismiss. The court reiterated that Boy
Scouts was not a state actor and, thus, the Michigan Civil Rights Act provided no relief for
plaintiffs. Further, the court held that Jones militated against judicially inferred damages when a
legislative scheme existed to remedy plaintiffs' rights.
"Community groups or organizations which include residents of the district shall be permitted
and encouraged to use school facilities for worth while [sic] purposes when such use does not
interfere with the school program. School buildings may be used by responsible organizations
for activities that are consistent with federal, state and local laws. The Board shall prescribe
regulations for occupancy and use to secure fair, reasonable, and impartial use of the properties."
Mt. Pleasant Policy 7510.
In response to the November 2002 order, plaintiffs appealed to this Court. This opinion
will address plaintiffs' claims under the Michigan Constitution, including the Establishment
Clause, Const 1963, art 1, § 4, and the Equal Protection Clause, Const 1963, art 1, § 2, as well as
plaintiffs' claims under Michigan's civil rights and public accommodation statutes, MCL 37.2101
et seq. and 750.146 et seq. Plaintiffs also alleged that Boy Scouts was acting as a fraternity as
proscribed by the Michigan School Code, MCL 380.1316. Because plaintiffs failed to make this
final allegation in their initial or amended complaint, this issue is not properly before this Court
and will not be addressed in this opinion.
II. STANDARD OF REVIEW
Summary disposition of all or part of a claim or defense may be granted when "[e]xcept
as to the amount of damages, there is no genuine issue as to any material fact, and the moving
party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10).
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual
support for a claim. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
"The purpose of summary disposition is to avoid extensive discovery and an evidentiary hearing
when a case can be quickly resolved on an issue of law." Shepherd Montessori Ctr Milan v Ann
Arbor Twp, 259 Mich App 315, 324; 675 NW2d 271 (2003).
When deciding a motion for summary disposition under C(10), a court must consider the
pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the
light most favorable to the nonmoving party. Ritchie-Gamester v City of Berkley, 461 Mich 73,
76; 597 NW2d 517 (1999); MCR 2.116(G)(5). A motion for summary disposition based on the
lack of a material factual dispute must be supported by documentary evidence. MCR
2.116(G)(3)(b); Meyer v Center Line, 242 Mich App 560, 574-575; 619 NW2d 182 (2000). All
reasonable inferences are to be drawn in favor of the nonmovant. Hall v McRea Corp, 238 Mich
App 361, 369-370; 605 NW2d 354 (1999), remanded 465 Mich 919 (2001).
On appeal, a trial court's decision on a motion for C(10) summary disposition is reviewed
de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This Court must
review the record in the same manner as must the trial court to determine whether the movant
was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294;
582 NW2d 776 (1998). Review is limited to the evidence that had been presented to the trial
court at the time the motion was decided. Peña v Ingham Co Rd Comm, 255 Mich App 299, 313
n 4; 660 NW2d 351 (2003).
III. MICHIGAN CONSTITUTIONAL CLAIMS
A. ESTABLISHMENT CLAUSE
The Michigan Constitution provides:
Every person shall be at liberty to worship God according to the dictates
of his own conscience. No person shall be compelled to attend, or, against his
consent, to contribute to the erection or support of any place of religious worship,
or to pay tithes, taxes or other rates for the support of any minister of the gospel
or teacher of religion. No money shall be appropriated or drawn from the treasury
for the benefit of any religious sect or society, theological or religious seminary;
nor shall property belonging to the state be appropriated for any such purpose.
The civil and political rights, privileges and capacities of no person shall be
diminished or enlarged on account of his religious belief. [Const 1963, art 1, § 4.]
Our Supreme Court has held that both the state and federal provisions of the Establishment
Clause and the Free Exercise Clause of the First Amendment of the United States Constitution,12
are subject to similar interpretation. Advisory Opinion re Constitutionality of 1970 PA 100, 384
Mich 82, 105; 180 NW2d 265 (1970).
Thus, our Establishment Clause analysis, like the federal analysis, is governed by Lemon
v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d 745 (1971), in which the Supreme Court
developed a three-pronged test to determine whether state action violated the prohibition on the
establishment of religion: "First, the [state action] must have a secular . . . purpose; second, its
principal or primary effect must be one that neither advances nor inhibits religion; finally, the
[state action] must not foster 'an excessive government entanglement with religion.'" Id. at 612
613 (citations omitted).13 If state action violates any prong of Lemon, that action contravenes the
clause. Sherman, supra at 1164.
We initially note that, because of the impressionable nature of school children, the
Supreme Court "has been particularly vigilant in monitoring compliance with the Establishment
Clause in elementary and secondary schools." Edwards v Aguillard, 482 US 578, 584; 107 S Ct
2573; 96 L Ed 2d 510 (1987). We assess plaintiffs' claims with this vigilance in mind.
1. Secular Purpose
In pertinent part, Mt. Pleasant policy provided:
Community groups or organizations which include residents of the district
shall be permitted and encouraged to use school facilities for worth while [sic]
purposes when such use does not interfere with the school program. School
buildings may be used by responsible organizations for activities that are
consistent with federal, state and local laws. The Board shall prescribe
The first clause of the First Amendment of the United States Constitution provides, "Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
. . . ." US Const, Am I.
Mount Pleasant Policy 880A, Guidelines for Operations, uses Lemon's Establishment Clause
test to control its operations.
regulations for occupancy and use to secure fair, reasonable, and impartial use of
the properties. [Mt. Pleasant Policy 7510.]
The purpose of this policy is to open Mt. Pleasant facilities to the public, a secular end, and
equally allocating the resources of a limited public forum is appropriate to that end. Therefore,
Lemon's first prong is not offended. See Widmar v Vincent, 454 US 263, 272-273; 102 S Ct 269;
70 L Ed 2d 440 (1981).
2. Advancement of Religion
Plaintiffs contend that Mt. Pleasant favors religious groups over nonreligious groups
because it gave Boy Scouts priority over other community groups and allowed Boy Scouts to use
school facilities free of charge; permitted Boy Scouts to display recruitment posters in school
hallways, while recruiting school personnel to distribute membership solicitations and
promotional flyers to, and collect membership applications from, elementary students; and let
Boy Scouts conduct recruiting presentations to students in class. We will address each objection.
a. Boy Scouts Use of School Facilities
Mt. Pleasant's policy established priorities among qualified community groups: "school
directed" groups were given the highest priority among applicants and could use facilities at no
cost; "school related" groups, such as school-support organizations, Boy Scouts, 4-H, and faculty
organizations, were given priority after any school-directed groups and could also use facilities
free of charge. Nonprofit community groups followed, but were charged for the use of facilities,
and for-profit groups and noncommunity groups had the lowest priority among qualified
applicants and were required to pay for the use of facilities.
Plaintiffs contend that the structure of this policy, particularly the priority Boy Scouts
received, gave Boy Scouts a special advantage over other groups and thus advanced Boy Scouts'
religious position. We disagree. Although the policy created priorities among groups and
waived costs for some, the structure allocated resources reasonably, impartially, and thus
secularly. The facilities were open to all groups. The priority designations simply ensured that,
among organizations, those most closely connected with the purposes of schools would be
served first. Among priority levels, facility access was even-handedly offered on a first-come,
first-served basis so that no similarly situated group was favored over another. Thus, school
directed and school-related groups were given priority over other groups only because school
directed and school-related groups were those most closely connected with the students for
whom the facilities were created. Yet within the school-related group, Boy Scouts was on an
even footing with every other level-two priority group. Therefore, Mt. Pleasant's policy was
neutral; it had a secular purpose, and it did not advance religion over nonreligion. Simply
because Boy Scouts utilized the system does not itself create an Establishment Clause violation.
Plaintiffs seemingly advocate a blanket prohibition on any group with a scintilla of faith
based philosophy from using a Mt. Pleasant facility. The Lemon test does not require, nor did
the framers of the Constitution intend, to impose a constitutional straightjacket preventing any
sentiment of religious belief, however mild, from being expressed by a group or individual in a
school. Comm for Pub Ed & Religious Liberty v Nyquist, 413 US 756, 771; 93 S Ct 2955; 37 L
Ed 2d 948 (1973). Incidental, indirect, or remote benefits to religion do not alone render a
particular activity unconstitutional. Michigan Dep't of Civil Rights ex rel Parks v Gen Motors
Corp, Fisher Body Div, 412 Mich 610, 657; 317 NW2d 16 (1982); Nyquist, supra at 771;
Widmar, supra at 272-273.
Mt. Pleasant's neutrality makes this case indistinguishable from the Supreme Court's
conclusions in Westside Community Schools Bd of Ed v Mergens, 496 US 226; 110 S Ct 2356;
110 L Ed 2d 191 (1990), Lamb's Chapel v Ctr Moriches Union Free School Dist, 508 US 384;
113 S Ct 2141; 124 L Ed 2d 352 (1993),14 and Good News Club v Milford Central School, 533
US 98, 106; 121 S Ct 2093; 150 L Ed 2d 151 (2001), which collectively hold, inter alia, that the
Establishment Clause demands only that school districts act neutrally in allocating community
access to school facilities.
"[T]he [Establishment Clause's] guarantee of neutrality is respected, not
offended, when the government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose ideologies and viewpoints,
including religious ones, are broad and diverse." [Good News Club, supra at 114,
quoting Rosenberger v Rector and Visitors of Univ of Va, 515 US 819, 839; 115 S
Ct 2510; 132 L Ed 2d 700 (1995).]
Here, had Mt. Pleasant not evenhandedly allocated facilities between secular and
organizations with some religious precepts, like Boy Scouts, "then [Mt. Pleasant] would
demonstrate not neutrality but hostility toward religion." Mergens, supra at 248. Such hostility
would violate Boy Scouts' student-members' First Amendment right to free speech. Good News
Club, supra at 112 ("[S]peech discussing otherwise permissible subjects cannot be excluded
from [school facilities] on the ground that the subject is discussed from a religious viewpoint.").
Therefore, because Boy Scouts is merely one of many diverse organizations using school
facilities, Mt. Pleasant is not endorsing Boy Scouts over any other religious or secular group.
See Mergens, supra at 252. Thus, Mt. Pleasant did not violate the Establishment Clause when it
allowed Boy Scouts to meet in its facilities.
b. Boy Scouts Distribution & Posting of Literature in Mt. Pleasant Public Schools
At oral argument, plaintiffs suggested that Lamb's Chapel supported their contention that the
school district was endorsing Boy Scouts policy. Plaintiffs noted that the meeting at issue there
"would have been open to the public, not just to church members." Lamb's Chapel, supra at 395.
The meeting's openness did not control the Supreme Court's decision in Lamb's Chapel; that fact
was one of many the Supreme Court referenced to conclude that the school district had not
endorsed the film to be shown after hours in school facilities. See id; see also Sherman, supra at
1165 n 12.
Plaintiffs also contend that Mt. Pleasant violated the Establishment Clause by allowing
Boy Scouts to use school personnel to distribute its literature and collect its communications
during school hours as well as to hang its posters in Mt. Pleasant school hallways. Throughout
the school year, flyers from several organizations were distributed to students weekly.15 The
flyers were not discussed in the classroom, incorporated into the curriculum, or made part of the
day's activities. Boy Scouts' flyers received no special focus. The same is true of organizational
posters that hung in Fancher Elementary's hallways. Among those various posters, Boy Scouts'
posters enjoyed no unique focus, were not emphasized by Mt. Pleasant, and were not
incorporated into the curriculum.
Thus, we are not presented with the same concerns of endorsement the Supreme Court
found in Allegheny Co v American Civil Liberties Union, 492 US 573; 109 S Ct 3086; 106 L Ed
2d 472 (1989), in which the Court invalidated the unique, esteemed placement of a crèche in a
county courthouse. Nor does this case present the same concerns over coercion that the Supreme
Court found in Lee v Weisman, 505 US 577; 112 S Ct 2649; 120 L Ed 2d 467 (1992), in which
the Supreme Court struck down a nondenominational prayer for a high school graduation
because school officials were involved in selecting the person who delivered the prayer and
drafted guidelines for the prayer. See also Santa Fe Independent School Dist v Doe, 530 US 290;
120 S Ct 2266; 147 L Ed 2d 295 (2000), in which the Supreme Court invalidated a school policy
that permitted student-led prayers before school football games.
Simply because Mt. Pleasant allows civic groups, including Boy Scouts, to distribute
flyers to students and hang posters in school hallways does not create an Establishment Clause
violation. Ultimately, a wide array of organizations were allowed to display posters in Mt.
Pleasant hallways and to distribute literature to students as long as those organizations satisfied
the neutral qualifying criteria of Mt. Pleasant Policy 9700.
Further, Boy Scout literature did not denote the religious aspect of the group until
plaintiffs requested that Boy Scouts add a religious disclaimer to its advertisements. Since
plaintiffs requested the addition of the disclaimer, thereby affecting their purported injury, they
lack standing to challenge those advertisements with the added disclaimer. See Lujan v
Defenders of Wildlife, 504 US 555, 560; 112 S Ct 2130; 119 L Ed 2d 351 (1992).
In sum, we hold that Mt. Pleasant's policy, which permits Boy Scouts to distribute and
post literature and flyers, did not violate the Establishment Clause of the Michigan Constitution.
Const 1963, art 1, § 4.
The record shows that since 2000 a wide variety of organizational flyers from various groups
have been sent home with students by Mt. Pleasant's distribution system. The list includes the
Child and Family Enrichment Council, Chippewa Lanes, the Michigan Educational Trust, the
Downtown Business Association, the Isabella Community Soup Kitchen, the Youth Wrestling
League, Girl Scouts, Art Reach of Mid-Michigan, and the Festival of Trees.
c. Boy Scouts' School-Hours Visit
The circuit court originally concluded that the school-hours visit of a Boy Scout
representative constituted an Establishment Clause violation. However, the circuit court later
dismissed plaintiff 's claims in their entirety. We conclude that the school-hours visit by a Boy
Scout representative did not violate the Establishment Clause.
To violate Lemon's second prong, a state policy's primary effect must advance religion.
Boy Scouts is not primarily a religious organization. Rather, it is an organization whose mission
it is to prepare young people to make ethical choices by instilling in them certain values, some of
which are religiously based. As a state actor, Mt. Pleasant's admittance of a Boy Scout
representative to invite students to an informational meeting does not have the primary effect of
advancing religion over nonreligion. Here, the primary effect and purpose was to inform
students of scouting activities. Boy Scouts was not admitted so it could proselytize students.
Here, the recitation of the Cub Scout Promise or the Scout Oath occurs at private
gatherings where students and adult members attend freely and willingly. These meetings are
sufficiently distinct from school operations so that the line between Mt. Pleasant's school-hours
functions and Boy Scouts' after-hours meetings will not be blurred to confuse "children of tender
years, whose experience is limited and whose beliefs consequently are the function of
environment as much as of free and voluntary choice." Grand Rapids School Dist v Ball, 473
US 373, 390; 105 S Ct 3216; 87 L Ed 2d 267 (1985), rev'd on other grounds Agostini v Felton,
521 US 203; 117 S Ct 1997; 138 L Ed 2d 391 (1997).
In sum, because this visit was not coercive and was not primarily for the purpose of
promoting religion, Mt. Pleasant did not violate Lemon's second prong and, thus, did not violate
the Establishment Clause by advancing religious groups over nonreligious groups.
3. Excessive Entanglement
Alternatively, plaintiffs contend that Mt. Pleasant's actions fostered an excessive
governmental entanglement with religion. Here, Mt. Pleasant required Boy Scouts to comply
with policies governing school access and the distribution of literature pursuant to Mt. Pleasant
Policies 7510, 5722, 8800, and 9700. These general regulations applied to all organizations that
sought access to school mailboxes, hallways, and facilities. Such general regulations do not
create the excessive entanglement barred by Lemon. Rather, Lemon prohibits "comprehensive,
discriminating, and continuing state surveillance." Lemon, supra at 619. Here, Mt. Pleasant did
not monitor Boy Scout gatherings; rather, Mt. Pleasant only reviewed Boy Scouts' in-school
communications for compliance with Mt. Pleasant's policy. Such action falls far short of
comprehensive surveillance. Thus, Mt. Pleasant did not violate the Establishment Clause
through excessive entanglement with religion.
As no Lemon prong was violated, Mt. Pleasant did not violate the Establishment Clause.
B. EQUAL PROTECTION CLAUSE
Plaintiffs also allege that Boy Scouts and Mt. Pleasant jointly violated their right to
equal protection as guaranteed by the Michigan Constitution. We disagree.
The Equal Protection Clause of the Michigan Constitution provides:
No person shall be denied the equal protection of the laws; nor shall any
person be denied the enjoyment of his civil or political rights or be discriminated
against in the exercise thereof because of religion, race, color or national origin.
The legislature shall implement this section by appropriate legislation. [Const
1963, art 1, § 2.]
Our Supreme Court has held this clause to be coextensive with the Equal Protection Clause of
the United States Constitution.16 Harville v State Plumbing & Heating, Inc, 218 Mich App 302,
305-306; 553 NW2d 377 (1996). Thus, the Michigan Constitution, like the United States
Constitution, only protects individuals from discriminatory "state action." Woodland v Michigan
Citizens Lobby, 423 Mich 188, 205; 378 NW2d 337 (1985); Shelley v Kramer, 334 US 1, 13; 68
S Ct 836; 92 L Ed 1161 (1948) ("[The Fourteenth] Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.") Yet, in certain limited circumstances,
the Supreme Court has found private discriminatory conduct to be state action and violative of
the Equal Protection Clause. Brentwood Academy v Tennessee Secondary School Athletic Ass'n,
531 US 288, 295; 121 S Ct 924; 148 L Ed 2d 807 (2001) ("[T]he deed of an ostensibly private
organization or individual [will] be treated sometimes as if a State had caused it to be performed.
Thus . . . state action may be found if, though only if, there is such a 'sufficiently close nexus
between the State and the challenged action' that seemingly private behavior 'may be fairly
treated as that of the State itself.' [Jackson v Metropolitan Edison Co, 419 US 345, 351; 95 S Ct
449; 42 L Ed 2d 477 (1974)]."). Thus, whether the plaintiffs' rights to equal protection were
violated will turn on whether defendants' conduct can be considered discriminatory state action.
1. Mt. Pleasant Public Schools
Mt. Pleasant is a state actor. Thus, if Boy Scouts' policy of requiring endorsement of
religious principles can be attributed to Mt. Pleasant, then defendants will have violated
plaintiffs' right under Michigan's Equal Protection Clause to be free from discrimination based
US Const, Am 14, § 1 provides in part, "No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws."
In Gilmore v City of Montgomery, 417 US 556; 94 S Ct 2416; 41 L Ed 2d 304 (1974), the
Supreme Court addressed whether an organization's discriminatory policy could be attributed to
a city through the organization's use of municipal facilities. The Supreme Court held:
Traditional state monopolies, such as electricity, water, and police and fire
protection—all generalized governmental services—do not by their mere
provision constitute a showing of state involvement in invidious discrimination.
The same is true of a broad spectrum of municipal recreational facilities: parks,
playgrounds, athletic facilities, amphitheaters, museums, zoos, and the like. . . .
If, however, the . . . governmental entity rations otherwise freely
accessible recreational facilities, the case for state action will naturally be
stronger than if the facilities are simply available to all comers without condition
or reservation. [Id. at 574 (citations omitted).]
The school buildings at issue here fall under that "broad spectrum of municipal
recreational facilities." Thus, where Mt. Pleasant merely provided its facilities to Boy Scouts on
an equal basis rather than rationing them to Boy Scouts particularly, discriminatory state action
did not exist.
As discussed in the Establishment Clause analysis, the record here shows that Mt.
Pleasant simply allowed Boy Scouts to use Mt. Pleasant facilities in the same manner as other
similarly situated organizations. Although Boy Scouts was given level-two priority and could
use the facilities free of cost, the group was on equal footing with all other level-two priority
groups. Among level-two groups, facilities were available on a first-come, first-served basis and
each group's use was subject to the same terms and conditions.
Thus, because Mt. Pleasant did not ration its facilities, but rather distributed access
evenhandedly, Boy Scouts' policy of requiring endorsement of religious principles cannot be
attributed to Mt. Pleasant on the basis of Boy Scouts' use of Mt. Pleasant facilities.17
2. Boy Scouts of America
Boy Scouts is a private organization. Thus, discriminatory state action may be found
only if there was a sufficiently "'close nexus between the State and the challenged action' [so]
that [Boy Scouts'] seemingly private behavior 'may be fairly treated as that of the State itself.'"
This is the same conclusion arrived at by the United States Court of Appeals for the Seventh
Circuit in Sherman, supra. The Sherman court also applied Gilmore to a case where Boy Scouts
of America (BSA) had been allowed to use school facilities and student mailboxes. That court
rightly concluded, "BSA merely took advantage of what was available to all organizations of its
class." Sherman, supra at 1167.
Brentwood Academy, supra at 295 (citation omitted). The Supreme Court has found such a
nexus when a private actor assumed a traditional public function, when private discrimination
has been commanded or compelled by the state, when the state has jointly participated in a
private actor's discriminatory conduct, or when a private actor and the state have shared a
symbiotic relationship. Id.
a. Traditional Public Function
The United States Supreme Court has found "state action" when private actors have
assumed roles traditionally reserved for public administration. For private conduct to constitute
state action under this theory, plaintiff must show that the discriminatory private actor was
exercising power "traditionally exclusively reserved to the State." Jackson, supra at 352. The
Supreme Court has explained, "While many functions have been traditionally performed by
governments, very few have been 'exclusively reserved to the State.'" Flagg Bros, Inc v Brooks,
436 US 149, 158; 98 S Ct 1729; 56 L Ed 2d 185 (1978) (citation omitted).
The Supreme Court has found private actors to have assumed traditional state functions
exclusively reserved to the state when those actors discriminated in conducting elections, Smith v
Allwright, 321 US 649; 64 S Ct 757; 88 L Ed 987 (1944); discriminated in primaries that
effectively determined electoral candidates, Terry v Adams, 345 US 461; 73 S Ct 809; 97 L Ed
1152 (1953); discriminated while functioning as a municipality, Marsh v Alabama, 326 US 501;
66 S Ct 276; 90 L Ed 265 (1946), and Evans v Newton, 382 US 296; 86 S Ct 486; 15 L Ed 2d
373 (1966); or discriminatorily performed educational duties, provided fire or police protection,
or collected taxes. See Flagg Bros, supra at 163.
Plaintiffs contend that Boy Scouts' school-hours visits evinced state action by displacing,
or effectively replacing, the classroom teacher. We disagree. A Boy Scouts representative's
entering the classroom to disseminate information about the group and its meeting time does not
rise to the level of education; the visit was informative, not educational. Therefore, Boy Scouts
was not a state actor performing a traditional government function.
b. State Command or Compulsion
"State action" will also exist if the state, by operation of law, mandates the discrimination
of a private party. "[A] State is responsible for the . . . act of a private party when the State, by
its law, has compelled the act." Adickes v S H Kress & Co, 398 US 144, 170; 90 S Ct 1598; 26 L
Ed 2d 142 (1970). "When the State has commanded a particular result, it has saved to itself the
power to determine that result and thereby 'to a significant extent' has 'become involved' in it."
Peterson v Greenville, 373 US 244, 248; 83 S Ct 1119; 10 L Ed 2d 323 (1963) (citations
omitted). The state must effectively coerce the private party to act; merely acquiescing in the
private conduct is not enough:
[A] State normally can be held responsible for a private decision only
when it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to
be that of the State. Mere approval of or acquiescence in the initiatives of a
private party is not sufficient to justify holding the State responsible for those
initiatives under the terms of the Fourteenth Amendment. [Blum v Yaretsky, 457
US 991, 1004-1005; 102 S Ct 2777; 73 L Ed 2d 534 (1982) (citations omitted).]
In Moose Lodge No 107 v Irvis, 407 US 163; 92 S Ct 1965; 32 L Ed 2d 627 (1972), the
Supreme Court held that a private club's policy was not state action because the state could not
have forced the private club to comply with its exclusionary policy. Here, Mt. Pleasant did not
force Boy Scouts to implement a policy on religion. Similarly, Mt. Pleasant did not require Boy
Scouts to visit the school system, distribute its flyers, or use school facilities for meetings. Mt.
Pleasant lacked all legal force to compel Boy Scouts to participate in the school district.
Therefore, Boy Scouts was not a state actor by state compulsion.
c. Joint Participation or Entwinement
Alternatively, the Supreme Court has found joint participation between the state and a
private entity to evince state action: "[A] private party's joint participation with a state official in
a conspiracy to discriminate would constitute . . . 'state action essential to show a direct violation
of [a] petitioner's Fourteenth Amendment equal protection rights. . . .'" Lugar v Edmondson Oil
Co, 457 US 922, 931; 102 S Ct 2744; 73 L Ed 2d 482 (1982) (citations omitted).
The Supreme Court found such joint participation, or "entwinement," in Brentwood
Academy. There, the Court found that the state's not-for-profit high school athletic association,
which, directed by permanent state employees, organized and regulated high school sports, was
sufficiently entwined with the state school system to make the association a state actor. The
Court found "pervasive entwinement [to exist] to the point of largely overlapping identity
[between the association, an ostensibly private organization, and the state school system, a
governmental entity]." Id. at 303.
Plaintiffs allege that Boy Scouts and Mt. Pleasant were so entwined by citing the charter
agreement between Boy Scouts and Mt. Pleasant's Rosebush Elementary School and between
Boy Scouts and Mt. Pleasant PTAs Boy Scouts' prioritized access under Mt. Pleasant's policy
and the Boy Scouts' practice of referring to its troops by Mt. Pleasant names, and Boy Scouts' in
school advertising and school-hours visits. We will address each objection.
i. Boy Scouts-Rosebush Charter Agreement
Rosebush Elementary School entered into a charter agreement with Boy Scouts.
Plaintiffs' alleged injury derives from Boy Scouts' actions at Fancher Elementary School;
therefore, plaintiffs lack the particularized injury required to have standing to challenge Boy
Scouts' actions at Rosebush. Lujan, supra at 560.
ii. Boy Scouts-Mt. Pleasant Parent-Teacher Association Charter Agreements
Plaintiffs allege that MCL 380.485(2)(a), which requires first-class school districts to
"[p]rovide for an autonomous school-community organization in each school within the school
district," makes PTAs legally indistinguishable from the school district. The mandate of MCL
380.485 applies to first-class school districts, those of at least 100,000 students. MCL 380.402.
Mt. Pleasant does not have 100,000 students; therefore, even if plaintiffs' contention were true,
the law has not mandated the creation of the Mt. Pleasant PTAs that sponsored Boy Scouts
troops. Thus, these associations' actions do not carry the state's imprimatur.
Yet, even if this statute applied to Mt. Pleasant, MCL 380.485(2)(a) mandates
"autonomous school-community organizations . . . ." "Autonomous" means "[o]f or relating to a
self-governing entity."18 The statute, by the plain meaning of its words, makes its mandated
school-community organizations independent, self-governing entities. When construing a
statute, where the language is unambiguous, this Court gives the words their plain meaning.
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). Therefore, this autonomous group's
sponsorship of Boy Scout troops is not indicative of joint Mt. Pleasant-Boy Scouts
iii. Boy Scouts Prioritized Access and Use of Mt. Pleasant Names
Plaintiffs contend that Mt. Pleasant uniquely coordinates with Boy Scouts so its student
members may meet at members' schools. They also allege that Mt. Pleasant lets Boy Scouts use
school names to reference its troops. They assert that these facts evince joint Mt. Pleasant-Boy
Scouts participation. We disagree.
Mt. Pleasant is responsible for allocating facility resources. However, as discussed, there
is no evidence to show Mt. Pleasant favored Boy Scouts over any other school-related group or
uniquely rationed out its facilities to Boy Scouts to plaintiffs' detriment. That Mt. Pleasant
accommodated Boy Scouts' location requests, again on a first-come, first-served basis, does not
show joint participation; rather, this is proof of the sound administration of Mt. Pleasant's facility
allocation rather than probative evidence of entwinement.
Plaintiffs suggest that Boy Scouts' members' use of Mt. Pleasant names shows joint
participation. Pursuant to Mt. Pleasant Policy 7510, official use of school names requires
permission from the superintendent. No evidence was offered to show that Boy Scouts received
permission or that Mt. Pleasant Superintendent, Gary Allen, gave permission. Plaintiffs only
showed that Boy Scouts' members colloquially used Mt. Pleasant names to reference troops;
The American Heritage Dictionary of the English Language (2000).
See Holy Spirit Ass'n v New York State Congress of Parents and Teachers, Inc, 95 Misc 2d
548, 550; 408 NYS 2d 261 (1978).
there is nothing 'joint' in that showing. The record shows that Boy Scouts troops are officially
referred to by troop number, not school name.
Thus, Boy Scouts and Mt. Pleasant did not jointly participate in Boy Scouts'
discriminatory conduct because the group accessed Mt. Pleasant facility or its members
colloquially used school names to refer to its troops.
iv. In-school Literature Distribution and Visitation
As discussed, Mt. Pleasant allowed Boy Scouts to distribute its flyers under the same
terms and conditions that applied equally to all other groups. There was nothing uniquely
cooperative about Boy Scouts' use of Mt. Pleasant's literature distribution system; Mt. Pleasant
merely acquiesced in Boy Scouts' use of the neutral policy Mt. Pleasant implemented to balance
free speech and free exercise rights. Acquiescence is not sufficient to establish state action.
Boy Scouts' school-hours visits resulted from Boy Scouts' impetus, as opposed to joint
efforts between the group and Mt. Pleasant. Those visits showed no ostensible link to Boy
Scouts' religious nature. Mt. Pleasant merely approved Boy Scouts' temporary nonreligious visit.
Therefore, Boy Scouts' advertising and recruiting efforts did not make Mt. Pleasant a
participant in Boy Scouts' exclusion of plaintiffs. Thus, because Mt. Pleasant was not jointly
participating or sufficiently entwined with Boy Scouts, Boy Scouts was not a state actor.
Last, the Supreme Court has found state action when a private and government entity
shared a symbiotic relationship, that is, mutually conferred benefits on one another.
In Burton v Wilmington Parking Auth, 365 US 715; 81 S Ct 856; 6 L Ed 2d 45 (1961),
the Supreme Court found symbiosis where a diner that leased space from a publicly funded
government parking structure racially discriminated against black customers:
It cannot be doubted that the peculiar relationship of the restaurant to the
parking facility in which it is located confers on each an incidental variety of
mutual benefits. [Id. at 724.]
Here, the benefits of the Boy Scouts-Mt. Pleasant relationship were not mutually
beneficial; rather, Boy Scouts was the beneficiary of Mt. Pleasant's neutral policy applicable to
all groups seeking admission to school facilities. Further, this relationship was not exclusive to
Mt. Pleasant and Boy Scouts; any community organization with an acceptable purpose was
eligible to enjoy the same relationship. Thus, the Boy Scouts-Mt. Pleasant relationship was not
peculiarly mutual and did not benefit Mt. Pleasant. Therefore, Boy Scouts was not a state actor
because it did not share a symbiotic relationship with Mt. Pleasant.
Here, plaintiffs have failed to show that Boy Scouts' policy can be fairly attributed to Mt.
Pleasant, as a state actor, and has failed to show a sufficient relationship between Boy Scouts and
Mt. Pleasant to make Boy Scouts a state actor. Thus, plaintiffs failed to show that their
constitutional rights to equal protection have been violated.
IV. PUBLIC ACCOMMODATION CLAIMS
Michigan protects the public's right to equal access to public accommodations through
the Michigan Civil Rights Act and provisions in the penal code, often called the equal
accommodation act, that criminalize violations of public accommodation law and impose civil
liability. MCL 37.2101 et seq., MCL 750.146 et seq. These laws (1) guarantee and protect the
right to full and equal enjoyment of educational institutions and places of public accommodation
and (2) prohibit the publication of a communiqué that asserts that an educational institution or
place of public accommodation is not open because of an individual's religion.
The Civil Rights Act was created to provide statutory relief for violations of this right of
equal enjoyment and a foundation in law for injunctive relief and damages. MCL 37.2101. The
equal accommodation act provides similar relief and holds superintendents and employees of
protected places civilly and criminally liable for violating the act. MCL 750.147. See Ferrell v
Vic Tanny Int'l, Inc., 137 Mich App 238; 357 NW2d 669 (1984).
The Michigan Civil Rights Act requires that plaintiffs show unjustified disparate
treatment or intentional discrimination related to access to a place of public accommodation or
illegal advertising. See Clarke v Kmart Corp, 197 Mich App 541; 495 NW2d 820 (1992).
Similarly, the equal accommodation act requires a plaintiff show a withholding, refusal, or denial
of public accommodations or illegal advertising. Tucich v Dearborn Indoor Racquet Club, 107
Mich App 398; 309 NW2d 615 (1981).
A. Full, Equal Enjoyment
Under both acts, Mt. Pleasant is a protected educational institution and place of public
accommodation. The Michigan Civil Rights Act prohibits educational institutions from
"[d]iscriminat[ing] against an individual in the full utilization of or benefit from the institution, or
the services, activities, or programs provided by the institution because of religion . . . ." MCL
37.2402. The equal accommodation act similarly guarantees that "[a]ll persons within the . . .
state [are] entitled to full and equal accommodations, advantages, facilities and privileges of . . .
public educational institutions . . . ." MCL 750.146.
Further the Michigan Civil Rights Act prohibits, except where permitted by law,
"[d]eny[ing] an individual the full and equal enjoyment of the . . . facilities, privileges,
advantages, or accommodations of a place of public accommodation . . . because of religion . . .
." MCL 37.2302(a). The equal accommodation act guarantees that "[a]ll persons within the . . .
state [are] entitled to full and equal accommodations, advantages, facilities and privileges of . . .
all . . . places of public accommodation . . . ." MCL 750.146.
Plaintiffs concede that Boy Scouts' meetings are not educational institutions or places of
public accommodations under either act and recognize that Boy Scouts' members, as private club
members, have a First Amendment right to freely associate, which plaintiffs' forced inclusion
would violate. Further, plaintiffs concede that, as a private club, Boy Scouts would normally be
exempted from public accommodation statutes, see MCL 37.2303; Roberts v United States
Jaycees, 468 US 609; 104 S Ct 3244; 82 L Ed 2d 462 (1984), but contend that Boy Scouts is not
exempt because it is practicing its exclusionary policy in Mt. Pleasant, an avowed educational
institution and place of public accommodation.
Boy Scouts and Mt. Pleasant did not violate Michigan's public-accommodation
protections. Mt. Pleasant did not discriminate against plaintiffs' full and equal use of or benefit
from Mt. Pleasant or its programs; nor did Boy Scouts, as a beneficiary of Mt. Pleasant's neutral
access policy, inhibit plaintiffs' right to full, equal access.
However, Boy Scouts' meetings were not Mt. Pleasant "programs," from which Ben was
excluded; rather, they were private meetings of Boy Scouts' members who, as such, have a First
Amendment right to disassociate from nonreligious persons.
Further, plaintiffs had equal, but unexercised, rights of access to Mt. Pleasant for their
own purposes. No evidence was offered to show that Mt. Pleasant facilities could not
accommodate both Boy Scouts and plaintiffs. Mt. Pleasant did not ration its facilities to Boy
Scouts over plaintiffs; rather, had they sought access to a facility, plaintiffs would have been
subject to the same terms and conditions of Mt. Pleasant's neutral policy that apply to all groups.
However, plaintiffs never sought admittance and, therefore, were never denied the full and equal
enjoyment of Mt. Pleasant.
Plaintiffs argue that, because Boy Scouts meetings are closed to them, they are effectively
deprived full enjoyment of Mt. Pleasant facilities. This argument sweeps too broadly. Full
enjoyment does not require that patrons of public accommodations or educational facilities be
given carte blanche to indiscriminately enter any classroom or gymnasium regardless of the
competing interests of others. That plaintiffs might be required to share separate areas of the
same building with a religious or other exclusionary group is an onus that must be suffered in a
democratic society. No proof has been offered to show that, despite Boy Scouts' presence,
plaintiffs could not also fully enjoy use of Mt. Pleasant facilities. Thus, plaintiffs were not
denied their rights to fully and equally enjoy Mt. Pleasant as an educational institution and place
of public accommodation.
B. Prohibited Communication Purporting to Deny the Full Enjoyment of Mt. Pleasant
The Michigan Civil Rights Act and the equal accommodation act prohibit the direct or
indirect publication of any communiqué indicating that the full and equal enjoyment of the
facilities, privileges, advantages, or accommodations of a place of public accommodation will be
denied an individual because of religion or that an individual's presence at a place of public
accommodation is unwelcome or unacceptable because of his religion. MCL 37.2302(b),
37.2402(e), and 750.147.
Boy Scouts did print and Mt. Pleasant did circulate flyers including Boy Scouts'
declaration of religious principle. However, we need not decide whether those flyers violate
Michigan public accommodations statutes because, as explained, plaintiffs effectively caused
their alleged injury and, therefore, do not have standing to challenge the flyers. See Lujan,
/s/ Bill Schuette
/s/ Brian K. Zahra
/s/ Henry William Saad